Urick v. Elkins Kalt Weintraub Reuben Gartside, LLP

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. 20STCV17462, David J. Cowan, Judge. Affirmed.

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Elkins Kalt Weintraub Reuben Gartside, Jeffrey K. Riffer, and Julie Z. Kimball for Defendants and Appellants.

Bohm Wildish & Matsen, James G. Bohm; Ulwelling Law and Lauren E. Saint for Plaintiffs and Respondents.

HOFFSTADT, J.

A woman and her son sued the lawyers who represented her in probate litigation for legal malpractice and related claims due to an alleged conflict of interest and allegedly bad advice. The trial court denied the lawyers' motion to dismiss the entire lawsuit under our anti-SLAPP law (Code Civ. Proc., § 425.16), ^[1]because their alleged misconduct did not constitute activity protected by the anti-SLAPP law. This was correct, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In 2013, Allyne L. Urick created the Allyne L. Urick Trust (the Trust), a primary asset of which was a three-story apartment building held as part of a joint venture. Upon Allyne's death, the Trust provided for a lifetime annuity to three people with the remainder going to her deceased husband's alma mater; the three people were (1) her daughter, Dana Urick (Dana), (2) her son, Willis E. Urick III (Willis), and (3) her grandchild (and Dana's son), Trentyn Urick-Stasa (Trentyn).^[2]

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When Allyne died in August 2015, Dana became the Trust's trustee. As trustee, Dana (1) filed a February 2016 petition to reform the Trust to eliminate the bequests to Willis and the school and instead to split the Trust's $14 million corpus between herself and her son Trentyn, and (2) in March 2017, triggered- but did not consummate-the procedures to buy-out the interests of Lucien Seifert (Seifert), the other joint venturer in the apartment building.

These actions had consequences. In response to her petition for reformation, Willis in May 2016 and thereafter filed various petitions to disinherit Dana and her son under the Trust's "no contest" clause and to have Dana removed as trustee. In response to the invoked but aborted buy-out, Seifert sued Dana in November 2017 and Dana cross-complained against Seifert in December 2017.

In her role as trustee of the Trust, Dana retained the law firm Elkins Kalt Weintraub Reuben Gartside, LLP and two of its lawyers (collectively, defendants) in November or December 2017 to "provide [her] guidance" and "legal representation" "in matters related to trust administration and in litigation concerning the Trust." During this period, Dana simultaneously employed separate counsel to aid her in the ongoing litigation, as her cross-complaint against Seifert filed in December 2017 and an amended petition for reformation she filed in May 2018 were each filed by counsel other than defendants.

In January 2020, the probate court removed Dana as trustee of the Trust and appointed successor cotrustees after concluding that (1) her pursuit of the reformation petition, which was to her personal advantage, constituted a conflict of interest, and (2) her position in the Seifert litigation might "cause major

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tax problems for the Trust" that would harm the Trust's other beneficiaries.

II. Procedural Background

A. Complaint

On May 7, 2020, Dana (in her individual capacity rather than as trustee for the trust) and Trentyn (with Dana serving as his guardian ad litem) (collectively, plaintiffs) sued defendants for (1) legal malpractice, (2) breach of contract due to failure to provide adequate legal representation, and (3) interfering with a prospective economic advantage because their inadequate legal representation caused plaintiffs to "los[e]" out on the "financial benefits" flowing from Dana's role as trustee and, possibly, both plaintiffs' status as beneficiaries.^[3]

Although plaintiffs' complaint makes general allegations that defendants "negligently and carelessly provided legal services and advice . . . which included . . . their filing of pleadings and other documents," plaintiffs go on to allege the following "specific breaches" of defendants' duty to provide adequate legal representation: (1) defendants did not disclose that another lawyer at the firm was representing Seifert in the ongoing litigation between Seifert and the Trust, which required Dana to scramble to find new counsel in the Seifert litigation when Seifert attempted to disqualify defendants, and (2) defendants gave her bad "advice" to continue pursuing her previously filed reformation petition, which may result in her (a) personally paying a surcharge for the Trust's expenditures paying defendants' fees, and (b) being excluded from the Trust under its no contest clause.

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B. Anti-SLAPP motion

Defendants filed a special motion to strike plaintiffs' entire complaint under the anti-SLAPP law, arguing that (1) plaintiffs' claims fall within the ambit of the law because they "rest entirely on" defendants' "litigation-related conduct," and (2) plaintiffs' claims must be dismissed (and hence lack minimal merit) because defendants cannot defend themselves unless the successor cotrustees waive the attorney-client privilege running between the Trust and its lawyers.

After further briefing and two hearings, the trial court issued a written ruling denying the anti-SLAPP motion.^[4] The court reasoned that plaintiffs' claims did not "arise from" activity protected by the anti-SLAPP law because "the primary thrust of [plaintiffs'] claims is that [d]efendants breached their professional and ethical duties . . . by engaging in conflicted representation in the Seifert action and providing damaging and negligent legal advice in the Urick trust action," neither of which was based on any "litigation activities." In light of this holding, the court declined to issue a definitive ruling on whether plaintiffs' claims had minimal merit.

C. Appeal

Defendants filed this timely appeal.

DISCUSSION

Defendants argue that the trial court erred in denying the special motion to strike under the anti-SLAPP statute. Because

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we independently review a trial court's anti-SLAPP analysis (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park)), we are not bound by its rationale.

I. Governing Law

A. Anti-SLAPP law, generally

Section 425.16 was created "to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1217 (PrediWave); § 425.16, subd. (a).) To effectuate this purpose, the trial court is empowered to strike a claim if it answers "yes" to the first question and "no" to the second question: "(1) has the moving party 'made a threshold showing that the challenged cause of action arises from protected activity' [citation], and, if so, (2) has the nonmoving party 'established . . . a probability that [they] will prevail' on the challenged cause of action by showing that the claim has 'minimal merit' [citations]?" (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 887.) The first question-that is, whether a cause of action arises from protected activity-"turns on two subsidiary questions: (1) What conduct does the challenged cause of action 'arise[] from'; and (2) is that conduct 'protected activity' under the anti-SLAPP statute?" (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698 (Mission Beverage).)

"A cause of action 'arises from' protected activity when 'the cause of action itself' is 'based on' protected activity. [Citations.] Whether a cause of action is itself based on protected activity turns on whether its ""'principal thrust or gravamen'"" is protected activity-that is, whether the "'core injury-producing conduct'" warranting relief under that cause of action is protected

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activity." (Mission Beverage, supra, 15 Cal.App.5th at p. 698, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1114 (Briggs), Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 134; see also Park, supra, 2 Cal.5th at p. 1060 [conduct constituting protected activity must "itself [be] the wrong complained of"]; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012 (Bonni) [affirming "gravamen test" "to determine whether particular acts alleged within the cause of action supply the elements of a claim . . . or instead are incidental background"].)

What conduct is "protected under the anti-SLAPP statute" turns "not [on] First Amendment law, but [rather on] the statutory definitions in . . . section 425.16, subdivision (e)." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) As pertinent here, subdivision (e) of section 425.16 defines protected activity to include "any written or oral statement or writing made before a . . . judicial proceeding" or "in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e)(1) & (2); Briggs, supra, 19 Cal.4th at p. 1115 [""'basic act of filing litigation or otherwise seeking administrative action'""; protected]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490 [statements made during witness preparatory interviews; protected].) In assessing whether a cause of action arises from protected activity, a trial court must consider "the pleadings" as well as the "supporting and opposing affidavits stating the facts upon which the liability or [a] defense is based." (§ 425.16, subd. (b)(2).) However, the pleadings are of primary importance because the plaintiff is the architect of her own...